Primary Navigation

Second Circuit Holds that all Degrees of New York Robbery Are Crimes of Violence

A Second Circuit panel held today that, under the force clause of the subsequently revised U.S.S.G. § 2L1.2 (2014), all degrees of New York robbery are crimes of violence. United States v. Pereira-Gomez, No. 17-952 (2d Cir. 2018) (Cabranes, Carney, Caproni (SDNY)) (appeal from Azrack, J., EDNY), opinion available here. Despite this holding, practitioners are urged to preserve the argument that New York robbery is not a crime of violence under the force clause, as the Supreme Court will soon be deciding this issue in Stokeling v. United States, No. 17-5554.

Mr. Pereira-Gomez was convicted of illegal reentry, in violation of 8 U.S.C.§§ 1326(a) and 1326(b)(2). The version of U.S.S.G. § 2L1.2 then in effect provided for a sentencing enhancement if the defendant had a prior conviction for an offense that “has as an element the use,attempted use, or threatened use of physical force against the person of another.” The District Court applied this enhancement based on the defendant’s prior conviction for attempted New York robbery in the second degree.

The Second Circuit panel affirmed the sentence. New York robbery statute defies robbery as “forcible stealing,” which requires “us[ing] or threaten[ing] the immediate use of physical force upon another person.” N.Y. Penal Law § 160.00. In United States v. Spencer, 955 F.2d 814, 820 (2d Cir. 1992), the Court held that all degrees of New York robbery are crimes of violence under the “force clause.” The panel rejected the argument that Spencer‘s holding was abrogated by the “violent force” requirement of Johnson I. In the panel’s view, the “plain language” of the New York robbery statute “includes as an element the use of violent force.” Slip op. at 19. What’s more, the panel stated that “attempted robbery” must also involve the use of violent force because, under New York law, “attempt” crimes require that an action “be ‘so near to its accomplishment that in all reasonable probability the crime itself would have been committed, but for timely interference'” Id. at 21 (quoting People v. Mahboubian, 74 N.Y.2d 174, 196 (1989)).

Notably, the Second Circuit’s holding relies heavily on language in People v. Jurgins, 26 N.Y.3d 607, 614 (N.Y. 2015), to the effect that a “taking by sudden or stealthy seizure of snatching[] would not be considered a robbery . . . in New York.” As Magistrate Judge Gold recently explained, however, the parties in Jurgin stipulated to this definition of robbery, and the New York Court of Appeals did not itself adopt this construction of the New York robbery statute.

The Supreme Court will soon address whether a state robbery statute akin to New York’s defines a “crime of violence” within the meaning of the force clause of the ACCA. Stokeling v. United States, No. 17-5554. Argument in Stokeling is scheduled for October 9. In light of Stokeling, practitioners would be well served to continue to press the robbery issue to preserve their claims.

Finally, a small upside of Pereira-Gomez is that the panel additionally held that New York robbery does not qualify as a crime of violence under the enumerated crimes clause. The Court ruled that New York robbery is broader than generic robbery because it does not require that the stolen property be taken from the person or presence of the owner or victim. See Slip op. at 10-17.